Will Appeals Court Judges Rule that Force-Feeding at Guantánamo Must Stop?

26.10.13

Last week, a panel of three appeals court judges in Washington D.C. (in the D.C. Circuit Court) heard an appeal from three Guantánamo prisoners — including the last British resident, Shaker Aamer — asking them to order the government to end the force-feeding of prisoners, and two of the three judges “asked sceptical questions of a government lawyer who argued that the courts have no jurisdiction” over conditions at Guantánamo, as Reuters described it.

At the height of the prison-wide hunger strike at Guantánamo this year, at least 106 of the remaining 164 prisoners were on a hunger strike, and 46 of those men were being force-fed. That total has now fallen to 15, but twice a day those 15 men are tied into restraint chairs, while liquid nutrient is pumped into their stomachs via a tube inserted through their nose, a painful and abusive process denounced by the World Medical Association and the United Nations.

In summer, two District Court judges turned down motions challenging the force-feeding of prisoners, ruling that they didn’t have jurisdiction in the case because of previous rulings involving Guantánamo and hunger strikes. Specifically, when Congress passed the Detainee Treatment Act of 2005, the legislation prevented prisoners from suing over their living conditions.

As I noted at the time, one of the judges, Gladys Kessler, was, nevertheless, severely critical of the government’s position. She referred to force-feeding as a “painful, humiliating and degrading process,” and also pointedly criticized President Obama’s inaction, noting, “The president of the United States, as commander in chief, has the authority — and power — to directly address the issue of force-feeding of the detainees at Guantánamo Bay.”

The other judge, Rosemary M. Collyer, endorsed the government’s position, claiming that there was “nothing so shocking or inhumane in the treatment” that it would raise a constitutional concern.

Last Friday, Judge David Tatel and Judge Thomas Griffith were the judges who “asked sceptical questions.” Reuters reported that, while they “stopped short of agreeing that forced feeding is inhumane, they suggested that Guantánamo detainees might be able to get around” the conditions in the DTA, which “bars them from suing over living conditions in extreme cases that might include forced feeding.”

Although a decision is not imminent, Reuters noted that the judges’ scepticism “appeared to be a fresh challenge to the administration’s control over how it treats Guantánamo detainees.”

Reuters also noted that the majority of US judges who have been asked to look at the question of force-feeding in prisons “have concluded that the measure may violate the rights of inmates to control their bodies and to privacy,” even though those are “rights rooted in the US Constitution and in common law,” but they have refused to act on these concerns because they have “found that the needs of operating a prison are more important.”

In the hearing last Friday, Judge Griffith, as Reuters put it, asked why the court “should accept without evidence the military’s contention that forced feeding is necessary to maintain order.” He asked Daniel Lenerz, one of the Justice Department lawyers, “Is that your trump card? As long as you play that, that’s the end of the inquiry?”

In response, Lenerz said that there were historical precedents allowing prison wardens to ascertain what they believe is necessary to maintain order, and, as Reuters described it, those in charge of a military prison “should have even more deference.”

In court, Jon Eisenberg, representing the prisoners, told the court, “Forced feeding is unethical, it’s inhumane, it’s a violation of international law and it’s a violation of medical ethics.” For Politico, Josh Gerstein added that he had added that the international community views force-feeding as “equivalent to torture.” The authorities, of course, disagree, arguing, despite doctors’ implacable complaints, that the force-feeding is humane, and necessary to save prisoners’ lives. In this, the authorities are ignoring the fact that the men only embarked on a hunger strike in the first place because their lives had become so intolerable in Guantánamo, where 84 of the remaining 164 prisoners were cleared for release in January 2010 by an inter-agency task force appointed by President Obama when he took office in 2009.

Jon Eisenberg also stated, as Politico described it, that he believed the personnel at Guantánamo “have jumped the gun” and “are performing the so-called ‘enteral feeding’ on people far from death’s door.” Eisenberg said, “They’re force feeding these men before their lives are at risk,” explaining that, as Politico put it, “any prisoner could be force fed for skipping nine meals, regardless of the inmate’s weight,” and “any prisoner with high blood pressure could be force fed for after skipping a single meal.” As Eisenberg described it, “I would be a candidate for force feeding.”

This prompted Judge Stephen Williams, the third judge, to tell Eisenberg that he was “asking too much of the courts to have them determine ‘the exact moment the risk of death reaches such a point it’s OK [to conduct] force feeding.'”

Despite Congressional obstructions, the lawyers for the prisoners are challenging the force-feeding regime through a writ of habeas corpus, the ancient legislation preventing arbitrary detention, which the Supreme Court granted the prisoners in 2004 and again in 2008, reversing Congress’s attempt to prevent them from seeking to challenge their detention through habeas corpus.

As Reuters described it, Judge Tatel “appeared open at Friday’s hearing to letting Guantánamo detainees use habeas suits to protest their conditions.” The Associated Press noted that, although Daniel Lenerz “argued that courts don’t have jurisdiction to hear challenges to the conditions at Guantánamo,” Judge Tatel “repeatedly challenged him on that point.”

He said the Supreme Court had “left it an open question” and pointed out that the courts “had allowed at least four similar suits in civilian prisons,” which prompted Daniel Lenerz to state that those lawsuits involved prisoners who were seeking a transfer from one prison to another, rather than seeking changes related to their medical treatment or how they are fed. Lenerz added that Congress “clearly intended to prohibit Guantánamo detainees from challenging the conditions of their detention.”

As Reuters noted, even if the court of appeals allows the lawsuits to proceed, the prisoners still need to convince judges in the appeals court or the lower court that the authorities at Guantánamo have “no penological reason” to force-feed prisoners.

In addition, Judge Tatel explained how this might be difficult because of a “whole series of federal and state court cases” ruling, as Reuters put it, that “civilian prisons had legitimate reasons for forced feeding, primarily to maintain order.”

Despite some positive noises from the court, I would be profoundly surprised if the appeals court rules for the prisoners, overturning the stranglehold of the Detainee Treatment Act, which, disgracefully, established that “no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”

Quote (apparently from an article by Abu Zubaydah’s defense lawyer Brent Mickum):
“Pulitzer Prize winning author David Suskind has reported that a knowledgeable CIA source wryly told him: “We gave [Abu Zubaydah] the best medical help in the world so we could start torturing him.”
Unquote.

Thanks, Anna. Yes, it’s remarkable how any of the officials involved can keep a straight face when talking about the humane imperative to force-feed men to keep them alive – men whose despair is a direct result of the lawless cruelty of the force-feeders’ own commander in chief and Congress.

Andy, I am going to take the liberty of repeating something I found when I reviewed the official records of the Guantanamo captive weight records. I mentioned my findings before, but not for some time.

The Joint Detention Group got permission to order “restraint chairs”, and started using them in January 2006.

I found that there were about a dozen of the hunger strikers who weight records showed shockingly massive weight gain — in January 2006, when the restraint chairs were introduced.

These captives were among those whose weight was so low medical technicians were supposed to weigh them every day. These dozen captives whose weight had dropped to around 100 pounds showed sudden weight gains of about four, five or six pounds a day, every day, until their weight crossed the threshold where their weight was so no longer low enough for their weight to be recorded daily.

One of those captives gained 40 pounds in seven days.

We know how dangerous such rapid weight gains are from animal husbandry. The preparation of pate de fois gras — French liver paste — relies on the massive force-feeding of waterfowl. Waterfowl have no gag reflex, and can helplessly be force-fed with a tube or funnel showed down their gullets, so farmer can pack their stomachs full of gruel. We know from animal husbandry that force-fed animals’ livers balloon in size. French farmers have the experience to know when to slaughter the waterfowl before their dangerously huge and fatty livers cause them to die of liver failure.

Gavage, as this procedure is called, is seen as so cruel farmers aren’t allowed to use it on domestic animals in much of the USA.

Candace Gorman wrote, repeatedly, over the years, how she could see how jaundiced her client al Ghazzawi was. She had state-side doctors try to help her diagnose why his liver was failing. She wondered whether Guantanamo medical staff had accidentally given him hepatitis. Sami al Hajj also emerged from Guantanamo with a dangerously damaged liver. Other captives showed signs of serious liver disease.

What al Hajj and al Ghazzawi had in common was that they were hunger strikers.

I suspect that this outbreak of liver disease was triggered by allowing the restraint chairs to be used in a de facto cruel ad hoc medical experiment — now that the guards could keep a captive restrained all day long how quickly could they restore him to a “healthy” weight.

I did the arithmetic. To lose a pound of weight one has to burn off 3600 Calories of energy beyond what consumes. To gain a pound of weight one has to consumer 3600 Calories of energy beyond what burns off in their daily activity. Those captives who gained 6 pounds a day? They would have to have consumed over 20,000 Calories a day. That Olympic Swimmer who won six Gold Medals — during his training, when he was working out at a high intensity, all day long, he said he consumed 10,000 Calories a day. 20,000 Calories is a massive Calorie consumption.

Ensure, the feeding fluid used at Guantanamo contains about one Calorie per millilitre. So, to force a captive to consume 20,000 Calories, one would have to drip into his stomach at least 20 litres of Ensure.

The Guards feeding them may have left the skinniest captives hooked up to the feeding tube all day long.

John Yoo said an interrogation technique had to be so painful it caused death, or organ failure, before it could be considered torture. Well these men’s livers were failing on them. I call “organ failure”. So, even by the narrow criteria of Professor Yoo, those force feedings were torture.

Very well put, arcticredriver. I certainly wouldn’t want to suggest that you’r not correct i your analysis of how the men’s weight increased to such an extent, although it is also worth noting that some weight records are wrong because – and I think Sami al-Haj mentioned this first – some guards would press down on the prisoners’ shackles while they were being weighed, to make it appear, in the record, that they were not as skeletal as they actually were.

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Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer. Email Andy Worthington